Roberts v Carlin

The Employment Appeal Tribunal held that an employment tribunal must give clear, Meek-compliant reasons so parties can understand why credibility findings and inferences were reached.

Failure to give adequate reasons will require a rehearing even where other challenges (for example apparent bias) fail.

Where a claimant establishes a prima facie pregnancy-related dismissal, the tribunal must require the employer to provide an adequate non-discriminatory explanation; compliance with statutory disciplinary procedures may be relevant to that explanation.

The appeal arises from a two-day hearing before the Truro Employment Tribunal which upheld a complaint of unlawful sex discrimination (pregnancy-related dismissal) and reserved remedy.

The Employment Tribunal found that the claimant was suspended and dismissed shortly after informing the respondent of her pregnancy and concluded pregnancy was the principal reason for dismissal.

The respondent appealed on four grounds: appearance of bias, misapplication of law including the relevance of statutory disciplinary procedures, failure to give Meek-compliant reasons, and perversity.

The EAT allowed the appeal on the Meek-reasons ground and remitted the case for rehearing before a fresh tribunal. The central issue before the EAT was whether the Employment Tribunal's reasons were adequate to show why the respondent's account was rejected.

1. The appeal is allowed and the matter is remitted for re-hearing before a fresh Employment Tribunal. The EAT did not uphold the appearance of bias ground but found the reasons deficient such that a rehearing is required (disposition: appeal allowed; remitted).
2. The Employment Tribunal must give Meek-compliant reasons. Reasons must identify issues, state the applicable law and explain how law was applied to primary facts. Where credibility or conflicting witness accounts are decisive, the tribunal must explain why particular evidence was preferred or rejected (see discussion of Meek v City of Birmingham [1987] IRLR 250 and r30(6) Employment Tribunal Rules of Procedure 2004 in the judgment).
3. The appearance-of-bias test is the objective test in Porter v Magill [2002] 2 AC 357. The EAT concluded that, on these facts, the judge's provisional comments did not, as a stand-alone matter, demonstrate a real possibility of bias. The tribunal must, however, produce cogent reasons when a party may reasonably feel unfairly treated.
4. Where a claimant establishes a prima facie pregnancy-related dismissal under the Sex Discrimination Act 1975 and associated burden-shifting principles, the employer must give a credible non-discriminatory explanation. Compliance with the statutory disciplinary and dismissal procedures (DDP) can be relevant to that explanation. The EAT accepted that failure to follow DDP may strengthen an inference of discrimination but emphasised the tribunal must explain how non-compliance affected the weight of the employer's explanation.
5. The EAT found the Employment Tribunal's reasoning internally incoherent. The tribunal purported to rely on non-compliance with disciplinary procedures and on a rule that discrimination may be subconscious, but did not explain why the respondent's account that the dismissal decision pre-dated knowledge of pregnancy was rejected. That defect rendered the reasons not Meek-compliant and vitiated the decision.
6. Practical orders: appeal allowed; rehearing directed before a fresh Employment Tribunal. No substitution of factual findings was undertaken by the EAT because the EAT could not safely determine primary facts from the record.

• Employment Appeal Tribunal: Full hearing allowed appeal; remitted for rehearing before a fresh Employment Tribunal (judgment delivered 17 December 2010).
• Employment Tribunal, Truro: Original hearing 15-16 January; Reasons promulgated 11 February 2009; found for claimant on sex discrimination (pregnancy) claim; remedy adjourned.